Montana, North Dakota, South Dakota, and Wyoming are among 13 States that filed a motion in the Fargo, N.D. Federal District Court to request a preliminary injunction on the U.S. Environmental Protection Agency's (USEPA) and U.S. Army Corps of Engineers' (USACE) Clean Water Rule, until a judge can hear the States' lawsuit which was filed in June.

A hearing for the injunction request is scheduled for August 21 in Fargo. If the injunction is granted, it would delay the August 28, 2015 effective date of the Clean Water Rule, formerly known as the Waters of the U.S. Rule. Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Nebraska, Nevada, and New Mexico also participated in the federal filing.

USEPA and USACE have until August 24 to respond to the injunction request. The federal filing occurred less than two weeks after Attorneys General and other officials from 31 States asked the USEPA to delay the effective date for the Clean Water Rule. "The rule is perhaps the most controversial and widely objectionable rule that would usurp state and local control over vast reaches of water in North Dakota and across the nation," says Wayne Stenehjem, North Dakota Attorney General.

USEPA and USACE issued its final Clean Water Rule in late May of 2015. It includes broad new definitions of the scope of “waters of the United States” that fall under the jurisdiction of the Clean Water Act. USEPA has repeatedly said the Clean Water Rule will only apply to the types of waters that have historically been covered under the Clean Water Act, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.

If you have questions about how the Clean Water Rule could impact your facilities, planned projects, or existing programs, contact Jeff Hruby, AE2S Water Resources Practice Leader, at Jeff.Hruby@ae2s.com or 701-221-0530.